Court: Jurors can't be cut because they are gay

Updated 6:24 pm, Tuesday, January 21, 2014

A lawyer can't remove prospective jurors from a panel because they are gay or lesbian, a federal appeals court ruled Tuesday in a decision that could open the door to challenges of other types of discrimination based on sexual orientation.

The ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco extends to gays and lesbians the same rights in jury selection that the U.S. Supreme Court granted to African Americans in 1986 and to women in 1994. Just as importantly, the appeals court interpreted a recent Supreme Court ruling as requiring "heightened scrutiny" for any government discrimination based on sexual orientation - the same standard that covers gender bias.

The June 2013 ruling that granted same-sex married couples equal rights to federal benefits made it clear that the high court "refuses to tolerate the imposition of a second-class status on gays and lesbians," Judge Stephen Reinhardt said in the appeals court's 3-0 decision.

Any time the government discriminates based on sexual orientation, by removing a prospective juror or in some other action, "we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institution neither send nor reinforce messages of stigma or second-class status," Reinhardt said.

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1st for appeals court

It was the first such ruling by a federal appeals court on both juror selection and other types of discrimination. California courts have issued similar rulings, which apply to state and local government actions and Superior Court trials.

"LGBT people are proud to serve the courts when summoned," D'Arcy Kemnitz, executive director of the National LGBT Bar Association, said in a statement praising the ruling. Excluding jurors because of their sexual orientation or gender identity, she said, "denies countless individuals a jury of their peers."

New trial ordered

The court ordered a new trial of an antitrust suit by the pharmaceutical company GlaxoSmithKline that accused a rival firm, Abbott Laboratories, of inflating the price of an AIDS drug in order to harm competitors.

During jury selection in Oakland in 2011, a prospective panel member referred to his partner as "he" several times and was later removed by Abbott's lawyer in one of the challenges allotted to each side.

Defending his action, the lawyer said he didn't know whether the man was gay, but it didn't matter because the constitutional ban on discrimination in jury selection didn't cover sexual orientation. U.S. District Judge Claudia Wilken agreed and let the case go to trial, which resulted in a mixed verdict and a $3.48 million damage award to Glaxo, far less than the company had sought.

The appeals court said the lawyer's denial that he wasn't aware of the juror's sexual orientation wasn't credible, and observed that Abbott Laboratories had a motive to remove gay jurors because the gay community had criticized the company's pricing of its AIDS drug.

Reinhardt also said gays and lesbians "have been systematically excluded from the most important institutions of self-government," citing federal employment purges in the mid-20th century and exclusionary immigration policies that continued until 1990.

Citing privacy concerns, he said the court wasn't authorizing lawyers to "out" prospective jurors, but was simply promoting the "impartiality of the jury system" by prohibiting arbitrary removal of jurors who identified themselves as gay or lesbian.

Unbiased jury

Brian Hennigan, a lawyer for Glaxo, said the ruling allows the company to "go back to court with an unbiased jury" and promotes "civil rights for all."

Abbott Laboratories said it was reviewing the ruling. The company could ask the full appeals court for a new hearing.